2017No3598 Meritoriouss

1. A;

2. B

Defendants

Newly Inserted by Act No. 1011, Mar. 1, 201>

Law Firm Rated (for the defendant)

Attorney Kang Han-hun, Kim Mon, and leap stone

Seoul Central District Court Decision 2015 High Court Decision 4687 Decided September 7, 2017

January 26, 2018

The Defendants’ appeal is dismissed.

1. Summary of grounds for appeal;

A. Error of mistake

1) Each protocol in which C’s statement is recorded is inadmissible as it does not satisfy the requirements of Article 314 of the Criminal Procedure Act.

2) The issue of determining “whether the sale price may be deemed to include a separate forest tree expense” is not a statement of fact, but a matter of legal judgment. Therefore, C’s testimony does not constitute an object of perjury.

3) In fact, since the above sales price included separate expenses, C was present at the court of appeal on September 16, 2014, and the testimony made by the witness at the appellate court on September 16, 2014 at the Seoul High Court Decision 302, cannot be deemed as a false statement.

4) The Defendants merely asked C to make a true statement, and do not induce C to make a false statement contrary to memory.

B. Unreasonable sentencing

The sentence (Defendant A: a fine of KRW 5 million, Defendant B: a fine of KRW 3 million) declared by the court below against the Defendants is too unhued and unreasonable.

2. Determination

A. Judgment on the assertion of mistake of facts

1) Whether admissibility is admitted

A) Relevant legal principles

(1) Pursuant to Article 314 of the Criminal Procedure Act, the protocol under Article 312 of the same Act or the statement, documents, etc. under Article 313 of the same Act must be used as evidence, where a person who needs to make a statement is unable to make a statement in the official ruling due to death, illness, residence in a foreign country, or any other reason, and the preparation of the statement or documents must be conducted under particularly reliable circumstances. "foreign residence" in relation to the first requirement is insufficient only to the existence of a person who requires a statement in a foreign country, and even if it is possible and considerable means, it is exceptionally applicable only under circumstances where the person who needs the statement is unable to be present in the court. In general, whether the requirements are met or not, it is decided through the procedure such as the dispatch of a writ of summons, but it is not possible to satisfy the above requirements, and therefore, even if it does not go through such procedure, if it is difficult for the court to expect the person to make a statement in the court, it shall be deemed as satisfying the above requirements.

(2) The statement or preparation of Article 314 of the Criminal Procedure Act is particularly reliable.

The term "when a statement is made under the Criminal Procedure Act" refers to cases where there is little room for false entry in the preparation of the statement or protocol or document, and there is a specific and external circumstance that guarantees the credibility or voluntariness of the content of the statement (see, e.g., Supreme Court Decision 2005Do9561, Apr. 14, 2006). Furthermore, in the case of a foreign residence, etc. under Article 314 of the Criminal Procedure Act, the admissibility of the statement or written statement made by a witness may be acknowledged only when the evidence satisfies the strict requirements, such as guaranteeing the right of cross-examination of the defendant or his defense counsel, by recognizing an exception to the basic principles, such as direct psychological principle, etc., and allowing the admissibility of the evidence without any opportunity to cross-examine the person making the statement or written statement in such a case, it should be excluded from the judgment of the court below to the extent that there is sufficient probability to prove the fact that the statement or written statement by a witness was made under particularly reliable circumstances (see, e.g., Supreme Court Decision 212014Do214.

B) Review of the instant case

(1) Comprehensively taking account of the following circumstances acknowledged by the evidence duly admitted and investigated by the lower court, it is recognized that the instant case is possible and reasonable, but it is difficult to expect C to be present at the court to be examined.

(1) C on December 24, 2015, the Seoul High Court Act on the Aggravated Punishment, etc. of Specific Crimes 2015No198

On December 26, 2015, the Korean government was sentenced to imprisonment for 2 years and 6 months in case of rate violation (Fraud), and the location of the Korean government was not confirmed after departure from Lao on December 26, 2015.

2. Family members and contact information of C around January 2017 to verify the location and contact information of C.

Although they attempted to have telephone conversations with their relatives, they responded that most of them did not receive telephone or they did not contact with C even if they received telephone.

③ According to the results of the fact-finding reply by the court below, “C” is not a Korean national residing abroad.

It seems that it is impossible to confirm the overseas address due to registration, and it is also impossible to summon C according to the judicial cooperation procedure because the Lao and the Korean government have not concluded a criminal justice cooperation agreement, or proceed with the witness examination procedure in the Lao court.

(4) C is deemed to have withdrawn from the Republic of Korea after being sentenced to punishment for the above criminal case

This seems to be difficult to expect voluntary attendance even if C becomes aware of the location or contact point of C.

6. As above, the court below held that the criminal case against C was in progress.

It is difficult to say that a separate measure should have been taken by an investigation agency to prepare for it, considering that it falls under "a case where it is probable that a statement may not be made due to attendance at court."

(2) On the other hand, comprehensively taking account of the following circumstances acknowledged in light of the record, each of the above protocols against C is rarely open to the preparation of the content of the statement or the protocol or documents, and there is little room for false entry into the protocol or documents, and there is a specific and external circumstance to guarantee the credibility or ar

1. C In the instant case, he/she does not directly experience after being investigated by the prosecution two times.

There is no circumstance to deem that C was forced to make a statement or made a statement in a psychological manner, in detail and in detail, after inspecting the protocol at the time of the investigation by each prosecutor, and signed and sealed it.

(2) C shall investigate and investigate the prosecution more than four times in Seoul Central District Court 2013 Gohap938.

Until the court's statement in the first instance court, it stated to the effect that "no person has separately calculated and purchased forest expenses for forest trees in the site at the time of purchasing the Osan City E site from the defendant" as stated in each prosecutor's statement in the same manner as the statement in the present case.

③ In the case of Seoul High Court 2014No748, the appellate court of the instant case, C, this position

Although the statement was made, a fine was paid after receiving a summary order of KRW 3 million due to perjury.

(4) The motive or circumstance leading to the perjury in the above appellate trial and the fact of perjury shall be re-Confessiond.

The Defendants’ assertion that C’s statement about the motive is persuasive as it is, while C’s statement on the other hand, that C continued to make a false statement from the investigative agency to the first instance court was able to receive the Defendants’ request and that C made a true statement in the appellate court (the Defendant asserts that C was bound to make a false testimony at the first instance court of the Party A, and that C promised to make a true statement at the appellate court to clarify the Defendants’ innocence by making a true statement at the appellate court, it is difficult to accept it in violation

(5) If the testimony at C's appellate court is not a perjury, the testimony at the first instance court shall be given the testimony.

Since C does not have any reason to make a false statement in order to gather the Defendants at the risk of the burden of perjury in the first instance trial.

6. C’s statements made by each prosecutor of the instant case are as follows: (a) the monetary content or the Kakao Stockholm message;

Not only accords with the Do, but also inconsistent with the facts finalized and judged in the relevant criminal and administrative cases, shall not be inconsistent and brought against them.

C) Sub-decision

Therefore, since the above written statements about C meet all the requirements of Article 314 of the Criminal Procedure Act and the admissibility of evidence is recognized, the defendants' assertion on this part cannot be accepted.

2) Whether C’s testimony constitutes an object of perjury

A) Perjury is established by a witness’s statement that goes against memory as to the facts. Provided, That the legal evaluation of the experienced facts or mere opinion is not a false means (see, e.g., Supreme Court Decision 84Do2039, Jun. 10, 1986).

B) However, the contents of C’s testimony at issue in this case are as follows: “The fact that C separately calculates and purchases forest trees within the site at the time of purchasing the E site from the Defendant.” Thus, it is clear that C is a statement as to the fact actually experienced by C. Therefore, the content of C’s testimony cannot be deemed as falling under a legal evaluation or simple opinion that is not subject to perjury. Therefore, the Defendants’ assertion on this part cannot be accepted.

3) Whether C’s testimony is false or false

A) Inasmuch as the facts acknowledged in the final and conclusive judgment on the same factual basis, such as other civil and criminal cases, related to the same factual basis, are valuable evidence, barring any special circumstance where it is difficult to employ the final and conclusive judgment, the facts contrary to the final and conclusive judgment cannot be recognized (see, e.g., Supreme Court Decisions 9Da55472, Feb. 25, 2000; 201Do15653, Jun. 14, 2012).

B) The Defendants asserted to the effect that the instant testimony was not false on the premise that “C separately calculated and purchased forest trees within the site at the time of purchasing Osan City E site from the Defendants.” However, this is inconsistent with the fact recognition in the relevant criminal case1) and administrative case 2, and thus, barring any special circumstances, it cannot be accepted unless there are special circumstances. The Defendants’ assertion by their defense counsel seems to be difficult to dismiss the determination of facts set forth in the above criminal trial and administrative trial. Accordingly, this part of the Defendants’ assertion is not acceptable.

4) Whether the Defendants instigated perjury or not

In light of the following circumstances acknowledged by the evidence duly admitted and examined by the court below, namely, C made a statement that the defendants reversed the existing statements and asked for the testimony favorable to them, C did not reverse the statements in the first instance court and there was no reason or motive for the appellate court to make a false testimony in the appellate trial, and C did not hold a meeting as to the contents of the testimony before September 14, 2014, the date when the testimony was scheduled to be made by the appellate court, and then arranged the specific questions and answers, it can be sufficiently recognized that the defendants abetted C. Thus, this part of the Defendants’ assertion is also rejected.

B. Determination on the assertion of unfair sentencing

The facts that the crime of perjury in this case does not have a significant influence on the trial result of the relevant criminal case, the equity between the crime and the crime of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) stated in the first head of the criminal facts in the judgment, and the fact that there is no same criminal record is favorable to the Defendants.

However, the Defendants’ crime is a crime that undermines the appropriate exercise of the state’s penal authority through the discovery of substantial truth and needs to be strict. The Defendants instigated the Defendants, the core witness to escape their criminal punishment, and in light of the motive, background, content, and method of the crime, the nature of the crime does not seem to be negligible. In addition, there is no special circumstance or change in circumstances that may be considered in sentencing newly in the appellate trial, and there is no other reason to believe that the Defendants’ participation in each of the crimes, including the degree, age, character and conduct, family relationship, health status, means of crime, and circumstances after the crime, and all of the sentencing conditions specified in the records and arguments of this case, including the records and arguments of this case, the lower court cannot be deemed to have exceeded the scope of reasonable discretion for sentencing.

Therefore, we cannot accept the Defendants’ assertion of unfair sentencing.

3. Conclusion

Therefore, the defendants' appeal is without merit and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

The presiding judge, senior judge, and leather

Judges Kim Gin-han

Judges Hwang Sung-sung

1) The Seoul Central District Court Decision 2013 Gohap938, 2013 Gohap1338 (Joint) and the above Decision became final and conclusive on August 13, 2015, following the appellate court (Seoul High Court 2014No748) and the final appeal (Supreme Court 2014Do14841).

2) Seoul Administrative Court Decision 2015Guhap6255 decided November 23, 2017, following the appellate court (Seoul High Court 2016Nu81606) and the final appeal (Supreme Court 2017Nu58250) and the final appeal (Supreme Court 2017Nu58250).